The present regular second appeal by defendant

No.3-purchaser assailing the judgment and decree dated

29.11.2011 in RA.No.71/2010, on the file of the Principal

Senior Civil Judge, Kalaburagi, reversing the judgment and

decree dated 24.04.2010 in O.S.No.140/2008 on the file of

the

III

Additional

Civil

Judge

(Jr.Dn.),

Kalaburagi,

whereby, the suit of respondent No.1 for declaration and

cancellation of sale deed was decreed by the first

Appellate Court.

The parties herein are referred to as per their

ranking before the Trial Court for the sake of convenience.

This Court while considering the appeal has

framed the substantial questions of law on 17.08.2020 and

during the course of argument, the additional substantial

questions of law have been framed by this Court on

07.09.2023.

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SUBSTANTIAL QUESTIONS OF LAW FRAMED ON

17.08.2020:

Whether the memorandum of family arrangement

(Ex.P4) could be termed to be partition of the

properties between the father of the plaintiff and the

father of the defendant No.1?

If yes, whether it requires compulsory registration

and whether the first appellate Court has made an

error in allowing the appeal and decreeing the suit?

SUBSTANTIAL QUESTIONS OF LAW FRAMED ON

07.09.2023:

(i)

Whether the acceptance of oral partition dated

15.08.1989 was justified by the first appellate Court

in the absence of any pleading in the plaint and proof

of the oral partition?

(ii)

Whether the examination of any attesting witness is

necessary to prove Ex.P-4 dated 10.10.2003 and

whether the first appellate Court was justified in

reversing the judgment of the trial Court?

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4.

Learned counsel for the appellant has been

heard on the substantial questions of law framed by this

Court.

5.

Though the notice to the respondents has been

served, they have chosen to remain absent.

6.

The brief facts of the case are that, the suit for

declaration and cancellation of the sale deeds contending

that the suit property i.e., open plot bearing No.96 (G)

type, measuring 60 ft. x 40 ft. in Sy.No.20 (hereinafter

referred to as “the suit plot”) having fallen to the share of

the plaintiff in a family partition between his brothers

Sudhakar, Narayan Rao and himself incorporating prior

partition in memorandum of family arrangement-cum-

partition effected on 10.10.2003, pursuant to which,

mutation was effected and the plaintiff is the absolute

owner in possession of the 'suit plot'. It is further averred

that defendant No.1 son of Sudhakar brother of the

plaintiff without having any title, sold the 'suit plot' under

a registered sale deed on 16.11.2006 to defendant No.2,

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who is none other than the brother-in-law of defendant

No.1 and defendant No.2 created a sale deed in favour of

defendant No.3 on 09.03.2007. Hence, the present suit

for the reliefs as sought in the plaint.

7.

Defendants appeared through their counsel.

However, the suit was resisted by defendant No.3 by filing

written statement, inter alia, contending that in an oral

family partition, the 'suit plot' fell to the share of

defendant No.1, who was the owner in possession of the

said 'suit plot' and who in turn sold the same to defendant

No.2 under a registered sale deed dated 16.11.2006. It is

the contention of defendant No.3 that, defendant No.2 in

turn sold the 'suit plot' to defendant No.3. It is the

contention of defendant No.3 that before the purchase,

public notice was issued regarding the purchase of the

'suit plot' to the general public and after due verification

and finding the name of defendant No.2 in the revenue

records, the 'suit plot' was purchased by defendant No.3.

Defendant No.3 contended that the 'suit plot' sold by

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defendant No.2 for legal necessity and on entering into

agreement, sold the 'suit plot' to the said defendant, as

such, defendant No.3 has become absolute owner of the

'suit plot' .

8.

The Trial Court on the basis of the pleadings,

oral and documentary evidence, held that the plaintiff has

failed to prove